Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbols

FORCED MIGRATION, HUMAN RIGHTS AND SECURITY, J. McAdam, ed., pp. 181-212, Hart Publishing, UK, 2008

Sydney Law School Research Paper No. 08/128

Islamic Law and Law of the Muslim World Paper No. 09-56

28 Pages Posted: 1 Nov 2008 Last revised: 27 Feb 2009

Ben Saul

The University of Sydney Law School

Abstract

This paper critically examines three key recent cases of superior courts concerning restrictions on religious symbols: a prohibition on wearing headscarves in Turkish universities, upheld by the Grand Chamber of the European Court of Human Rights (Sahin v Turkey)(2005); a restriction on a particular kind of Islamic dress in an English school, upheld by the British House of Lords (R (on the Application of Begum) v Headteacher and Governors of Denbigh High School)[2006]; and an absolute ban on wearing a Sikh kirpan (a symbolic dagger) in a Quebecois school, struck down by the Canadian Supreme Court (Multani v Commission scolaire Marguerite-Bourgeoys)[2006]. Each case focused on similar arguments about freedom to manifest one's religion, and dealt with subsidiary arguments about the impact of the respective restrictions on the right to education. While each case proceeded from different factual circumstances, there are considerable differences in their approaches to what were essentially the same human rights law questions. The decision of the European Court of Human Rights is the least satisfactory in both its reasoning and its result; the House of Lords arguably reached the correct result but its reasoning was abbreviated; and the Canadian Supreme Court properly reasoned its way to a correct result.

Keywords: headscarves, restrictions, freedom of religion, right to education, discrimination, human rights, terrorism, extremism

JEL Classification: K10, K30, K33

Suggested Citation

Saul, Ben, Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbols. FORCED MIGRATION, HUMAN RIGHTS AND SECURITY, J. McAdam, ed., pp. 181-212, Hart Publishing, UK, 2008; Sydney Law School Research Paper No. 08/128; Islamic Law and Law of the Muslim World Paper No. 09-56. Available at SSRN: https://ssrn.com/abstract=1292568

Ben Saul (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://www.law.usyd.edu.au/about/staff/BenSaul/index.shtml

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